Free movement of capital: Commission opens
infringement proceedings against Italy regarding the new regime for motorway
concession in Italy

In the context of the reform of motorway system of
concessions in Italy and the proposed merger between Autostrade and Abertis, the
Commission has today issued a letter of formal notice addressed to the Italian
authorities for the possible violation of Treaty provisions regarding the free
movement of capital and establishment. In particular, the Commission is
concerned that the new system of motorway concessions may create uncertainty
that could discourage investors. The lack of clearly stated policy objectives
pursued by the provisions in question and the lack of justification of the
measures taken may unduly introduce uncertainty on the upcoming renegotiation of
existing concessions and, therefore, the new system may unduly restrict the
free movement of capital and the right of establishment as enshrined in EU
Treaty rules (Article 56 and 43 respectively). The restrictive effect of these
provisions is enhanced by the threat of withdrawal of the existing concessions
in the event that an agreement is not reached between the Italian authorities
and the concessionaries. Separately, the Commission understands that provisions
limiting the voting rights of construction companies participating in the
operation of motorway concessions to 5% of the company's capital when appointing
the directors of the board of the concessionaire and which may unduly restrict
both fundamental freedoms, will be amended. The request will take the form of a
letter of formal notice (the first stage of infringement proceedings provided
for in Article 226 of the EC Treaty). If there is no satisfactory reply within
2 months to the letter of formal notice, the Commission may decide to issue a
formal request to Italy (in the form of a so-called ‘reasoned
opinion’, the second stage of infringement proceedings) to revise the
legislation in question.

The Italian law in question is Decree-Law No 262 of 3 October 2006 "Urgent
regulation on taxation and financial matters" and in particular, certain
provisions of Article 12 concerning the “New discipline concerning the
revision of fares on toll motorways and reinforcement of ruling power of
ANAS”, the Italian motorway regulator.

Article 12 of the above Decree-Law includes provisions that change the
motorway concession laws. It includes a limitation on voting rights to 5% of the
company’s capital for construction groups in motorway companies when
appointing directors and provisions for the renegotiation of all existing
motorway concession contracts. With respect to the latter, Article 12(1)
provides the dates in which the convenzione unica will replace existing licences
for all operators and Article 12(2) the principles the new contracts must adhere
to. Moreover, according to Article 12(6) and (7), should the concession-holder
reject the new terms the concession is automatically withdrawn.

The Commission understands that the Italian government has introduced
amendments to the above Decree-Law which withdraw the 5% voting cap. It welcomes
this development and expects that the Italian Parliament will adopt it in due
course.

However, with respect to the new concession regime, there is neither an
indication of the policy objectives pursued by the provisions in questions nor a
particular justification or imperative requirements in the general interest for
the measures taken. This could hinder the implementation of the new provisions
for the renegotiation of the existing concessions. Consequently, the Commission
considers that the new rules do not give potential investors the specific,
objective circumstances in which the renewal motorway concession will be granted
or withdrawn with the result that such rules are liable to hinder or make less
attractive the exercise of fundamental Treaty freedoms and must be regarded as
contrary to the principle of legal certainty.

In conclusion, the Commission takes the view that the provisions of the
Italian Decree-law No 262/2006, although applied in a non-discriminatory manner,
are not justified and therefore may unduly restrict the freedom of capital
movement (Art 56) and the right of establishment (Art 43).